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Features: Sex-Shamed To Death

How Oklahoma Prosecutors Used Sex And Infidelity To Put A Woman On Death Row

Brenda Andrew

Features: Sex-Shamed To Death

How Oklahoma Prosecutors Used Sex And Infidelity To Put A Woman On Death Row


It was July of 2004 in Oklahoma City, and Brenda Andrew was on trial for killing her husband. The prosecutor had been speaking for two and a half hours, and he was wrapping up the closing argument by reading from Rob Andrew’s diary about his wife’s infidelity: “The first time was when I drove to her school in Kansas to surprise her and I found out she had spent the night in her old boyfriend’s dorm room. Second time was during the summer when she was teaching at summer camp she met a new boyfriend and then kept dating him on the side while we were engaged.” The prosecutor announced that the date of the diary entry was 1984, 17 years before the crime. But there was no objection from the defense, and no one questioned the relevance of the passage. The jury started deliberating only a few minutes later. The following day they returned with a verdict of guilty.

The conviction was not a surprise, as the evidence against her was considerable. But the jury’s work was not done — their next decision was whether Brenda Andrew should live or die.


Only once in American history have three women been executed by the same state in the same year — Oklahoma in 2001. To understand the odds against such an occurrence, consider that women are arrested for about 10 percent of the homicides in the United States, but make up less than 2 percent of death row. An even smaller percentage actually lose their lives at the hands of the state.

A number of theories have been proposed to explain the bias against executing women. Richard Dieter, the former head of the Death Penalty Information Center, puts it simply: “jurors just see women differently than men.” Law professor Victor Streib, a well-known historian of the death penalty, says that “it’s just easier to convince a jury that women suffer from emotional distress or other emotional problems more than men.” Such thinking extends beyond capital punishment, since studies show women less likely than men to be incarcerated for comparable crimes. But what explains the few death sentences that are imposed on women? Professor Streib and other academics have postulated the “evil woman” theory — that women who violate society’s beliefs about female behavior lose the protection that femininity typically affords them before juries, and thus subject themselves to punishments ordinarily reserved for men. This is not a new theory. In 19th century England a female awaiting execution was referred to as “the wretched woman.”

The Puritan ethos of moral condemnation had landed on America’s shore hundreds of years earlier. This was perhaps best described by Nathaniel Hawthorne in The Scarlet Letter when he wrote of Hester Prynne with the bright red ‘A’ “so fantastically embroidered and illuminated upon her bosom. It had the effect of a spell, taking her out of the ordinary relations with humanity, and enclosing her in a sphere by herself.” But Hawthorne’s novel was about sexual transgression, not murder. Today the hypocrisy — that we are more likely to harshly condemn women who violate sexual mores and less likely to sentence female murderers to death — might seem anachronistic. The combination of sexual impropriety and murder is still a very potent mix, however.

Two days after the jury convicted Brenda Andrew of her husband’s murder, they sentenced her to death. This was not a foregone conclusion; the great majority of murder convictions do not end in death sentences. How the prosecution sent her to death row is a matter of record, a page torn from the same demonizing playbook demagogues have relied on from biblical times through the 2017 Twitter feed. That the courts have looked the other way — and pushed Brenda Andrew closer to execution by doing so — is a testament to the continuing viability of the “evil woman” theory, and the ingrained sexism that persists as an acceptable and even legal veneer.


Parishioners at the North Pointe Baptist Church in Edmond, Oklahoma are pretty much the same as everybody else — if they see people acting differently than they believe they should act, they whisper about it. Certainly Brenda Andrew drew her share of whispers at the church she and her husband attended. She was a very pretty woman who favored short, tight dresses. She flirted with men who did work around her house. She once changed the color of her hair after learning that a man she liked was partial to redheads. And she slept with men other than her husband.

Her final affair, with a man named James Pavatt, led to both of them being convicted of murder. They had met in 1999 when both became members of the church. Soon they were teaching a Sunday school class together. Pavatt sold insurance, and, like a character in a 1930s potboiler, had arranged a life insurance policy for Rob Andrew worth $800,000. Brenda was the policy’s beneficiary.

The Pavatt and Andrew families went to dinners and bible study with each other; and it wasn’t long before James and Brenda came together, and both families came apart. In the summer of 2001, Pavatt got divorced, and all that whispering started at the church. Just a few months later, Rob moved out of his home, and the Andrews began their own divorce proceedings soon after. The elders asked them to stop teaching the Sunday school class.

Maybe it was the money, maybe it was the attraction, but as the late summer turned to fall it wasn’t hard to imagine that blood might be spilled. In late October someone cut the brake lines on Rob Andrew’s car, which prompted him to accuse Brenda and Pavatt of trying to kill him. Not surprisingly, he tried to remove his wife as the beneficiary of his life insurance policy. At her trial, the state presented evidence that before the brake lines had been cut, she and Pavatt had attempted to change the ownership of the policy from Rob to Brenda by forging Rob’s signature. Like all murder cases, things were coming to a head.

On November 20, 2001, Rob Andrew died from two shotgun blasts in the garage of the family home. He had gone there to pick up his two young children for a Thanksgiving vacation, but he never made it to the living room, where the children were watching television (at a louder volume than normal, the prosecution argued.) Brenda was with her estranged husband in the garage, and suffered a superficial gunshot wound to her arm. Evidence suggested that the injury was not caused by a shotgun, and was from close range, which contradicted her claim that two masked gunmen had shot them both from a distance. Attention almost immediately focused on her and Pavatt as the perpetrators. Before her husband’s funeral, Brenda fled to Mexico with Pavatt and her children. Both of them were charged with murder before the month ended. By late February of the next year they had run out of money, and they were taken into custody crossing back into the United States.

It was not long after Brenda’s arrest that the press began categorizing her as a woman who slept around. An article entitled “Church and Fate,” published in People magazine seven months after her arrest, quoted a colleague of Rob Andrew: “One time we were driving by a motel and Rob casually told me he found Brenda at the motel with a former boyfriend after he was engaged to her. I said, ‘Rob, wake up.’” The same article referenced two prior affairs she’d had before she and Pavatt “began to carry on like teenagers that summer, giggling and passing notes during [church] services.”

Pavatt’s 2003 trial, which came six months before Andrew’s, previewed the trial against her. Indeed, the evidence against him was in many ways identical to that facing his co-defendant. There was the relationship between the two of them, the attempted manipulation of the insurance policy, and the flight to Mexico. Pavatt’s own adult daughter testified about the affair between her father and Brenda. And there was one other crushing piece of evidence against Pavatt — a letter allegedly written by him to Brenda’s daughter accepting blame for the murder and exonerating Brenda. But while the state introduced the letter into evidence, both sides contested its veracity, the prosecution claiming it only told half the story while the defense suggested Pavatt hadn’t written it at all. It didn’t matter. Pavatt was convicted and sentenced to death.

The Pavatt trial also proved to be a dress rehearsal for the “evil woman” theory that was going to dominate Brenda’s trial. One of her ex-lovers, a man named Higgins, was called by the prosecution to testify that she had once told him she wished her husband dead for her own financial benefit. But the state’s questioning of Higgins, which was largely repeated at her trial as well, strayed far from the question of guilt:

Q: Where did you first meet Brenda Andrew?

A: I met her in a grocery store. I was working there and she came in.

Q: And how did you meet her?

A: Basically I was working there and she came in and was flirting, being friendly. And I just talked to her and made her acquaintance.

Q: What do you mean she was flirting?

A: She was just being friendly and came in dressed real sexy looking, short dresses, and that sort of thing. And just came on to me and I just reacted to it.

Q: And did you believe when she came in there and was flirting with you that she was coming on to you?

A: Yes, I did.

Q: No doubt in your mind?

A: None.

Q: As a result of her coming on to you did you then form a relationship with her?

A: Yes, I did.

Q: Were you a married man?

A: Yes.

Q: And did you have knowledge that Brenda Andrew was married as well?

A: Yes.

[…]

Q: How long did this flirtatiousness continue between you and Brenda Andrew before the relationship became more serious?

A: Till about March and at that time she came into the store and handed me … stuck her hand out to hand me something and I put my hand out and it was a key to a motel room. And she said meet me there when you get off work.

Q: Did you do that?

A: Yes, I did.

[…]

Q: Who paid for that motel?

A: She did.

[…]

Q: And without going into any detail, when you all went to the motel did you have a sexual relationship?

A: Yes, we did.

Q: Did that sexual relationship with Brenda Andrew continue for a period of time?

A: Yes, it did.

Q: How long?

A: Till May of the next year.

Q: So approximately —

A: Little over a year, yes.

Q: Little over a year? Now, during this year and a little over a year period of time that you were having a relationship with Brenda Andrew, did you always go to a motel?

A: Most of the time, yes.

Q: Were there other places where you went to meet her to have sex?

A: Her car.

Q: And did Brenda always pay for the motel room?

A: Almost all the time, maybe once or twice she didn’t.

Then there was the search warrant of Brenda’s home, which yielded a long list of items, among them microcassette answering machine tapes, insurance documents, financial paperwork, and a few handwritten notes. But one item stood out. Among the many certificates and reports and handwritten notes, the prosecution introduced into evidence a book found in the middle drawer of her bedroom dresser: 203 Ways To Drive A Man Wild In Bed.


It is reasonable to wonder why the prosecution felt the need to paint Brenda Andrew in scarlet, when the evidence against her was virtually the same as against Pavatt, for whom they had already obtained a death sentence. But the death penalty, and who gets it, is not subject to an algorithm. Serial murderers like the Green River Killer, the Unabomber, and the BTK killer are serving multiple life sentences after plea bargains, while those who choose to go to trial having committed far less egregious crimes often end up executed or on death row.

Nor are juries predictable when it comes to ascertaining who deserves the harshest punishment. Courthouse killer Brian Nichols avoided a death sentence after killing a judge, a court reporter, a deputy sheriff, and a federal agent after escaping during his trial for rape. James Holmes, who killed 12 and injured more than 70 in the Aurora movie theatre, will die a natural death as well.

Such absurdities have been extensively noted at the highest levels: Supreme Court Justice Stewart declared death sentences “cruel and unusual in the same way that being struck by lightning is” in 1972. Two decades later Supreme Court Justice Blackmun famously announced that he would no longer “tinker with the machinery of death” for much the same reason; and Justice Breyer catalogued the same arbitrariness in a lengthy dissent just two years ago.

While there is no formula to predict who will or won’t get a death sentence, statisticians would have no trouble drawing conclusions about the impact of gender on Oklahoma’s death penalty. Of its 200 executions since statehood, only the three from 2001 were women. No woman since Brenda Andrew has gone to Oklahoma’s death row; and she is currently the only woman among the 47 people on death row. Pavatt and Andrew might have committed the same crime, but there is little doubt that Pavatt was far more likely to receive a death sentence. Whether consciously or not, the prosecution surely understood that obtaining a death sentence for Brenda Andrew was going to require more than a straightforward presentation of relevant evidence regarding the murder of her husband.

But more what? The literature examining the intersection of gender and criminology is replete with examples of behavior that violates stereotypes of female norms and expectations. Modern feminist theorists refer to this as “double deviance:” the punishment of women for their crimes and for their lack of conformity to female gender expectations. When women are portrayed as violent, masculine, or victimizers of children, they are more likely to be considered “evil women” and condemned for criminality. Perhaps the most common deviation from stereotypically feminine behavior is promiscuity, and the prosecution had more than enough evidence of that.

It didn’t take long for them to use it, either. The second sentence of the state’s opening statement identified Pavatt as “one of her lovers.” Shortly after that, the prosecutor declared that “Brenda had extracurricular activities. She liked to cheat on Rob…throughout the marriage Brenda had a boyfriend on the side.” Before her trial was over, the jury learned that Brenda was “coming on” to Higgins’ sons, who were helping build a deck at her house; that when she appeared in a restaurant dressed in a revealing manner, someone from the bar asked who the “hoochie” was; and that her babysitter from several years before the crime had a problem with her choice of clothes:

A: [Brenda] was going to run, get some groceries and do some other errands.

Q: Is that what she told you?

A: Yes.

Q: Did you notice anything at that point that you thought was unusual in regards to what she just told you?

A: Yes. She wasn’t wearing attire that I would consider appropriate for running errands. She had on a leather —

Defense Attorney: Objection, Judge, as to what this witness thinks is appropriate or not appropriate. Judge, it’s not being relevant to any issue that we’re here on in this case.

The Court: Overruled. Go ahead.

The Witness: Okay. It was a leather outfit. It was a leather skirt and leather button-up top and she had rolled her hair and it was really, really big…

There was even speculation from Pavatt’s own daughter that her father had not likely been Brenda’s only affair.

But the final piece of the puzzle was not yet in place. For all the talk of affairs and leather outfits, of really big hair and “hoochies,” the jury had not actually seen physical evidence to support the testimony of sexual promiscuity. The prosecutor thought he had some, though, and he waited until his closing argument to divulge it. This in itself was highly unusual. Evidence cannot magically appear of its own accord at the end of a trial; it must have been previously introduced through a witness. But the prosecution cunningly skirted the rules in the Andrew case. With no fanfare at all, the state had earlier presented suitcases seized from Pavatt and Andrew upon their return from Mexico. It was not until the prosecutor brandished the contents of the suitcases near the end of his final speech — several pairs of thong underwear and lace bras — that the true impact of such evidence was felt:

“This is what we found in [the suitcase]. It’s been introduced into evidence. The grieving widow packs this [displaying underwear] to run off with her boyfriend. The grieving widow packs this [displaying another pair] to go sleep in a hotel room with her children and her boyfriend. The grieving widow packs this [again] in her appropriate act of grief.”

The spectacle of a prosecutor parading a woman’s underwear in front of the jury dumbfounded the defense attorneys, who later claimed they were too shocked to even object. The portrait of Brenda Andrew as an evil woman was complete.


Much of the country has become disenchanted with the death penalty, and executions and death sentences are at national 40 year lows. But Oklahomans still seem partial to the punishment. While Trump won the statewide vote handily in the 2016 election, a ballot question ensuring the constitutionality of the death penalty passed by an even greater margin. Oklahoma ranks first in per capita executions since the reinstatement of capital punishment in 1976, and was the last state to execute a juvenile and an uncontested intellectually disabled person before both actions were declared unconstitutional in the early 2000’s. Brenda Andrew would have to navigate this difficult terrain for her appeal.

Her first stop was the Oklahoma Court of Criminal Appeals, where she found a tribunal unbothered by the prosecutor’s display of her underwear. Such evidence showed “the extent and the nature of the relationship between Pavatt and [Andrew], and their intentions in fleeing to Mexico — not as a grieving widow, but as a free fugitive living large on a Mexico beach.” The court was less cavalier about other evidence, however, finding that a number of mistakes had been made in her trial. Indeed, the court’s opinion noted that it was “struggling to find any relevance” to the evidence of her provocative dress, her change of hair color, her coming on to young men at her house. The state fared no better in defending that evidence itself, often veering into the ridiculous, such as its argument that her prior affairs “illustrate [Andrew]’s assertiveness when dealing with, and her ability to manipulate and control, men.” Did this sort of evidence have anything to do with a murder trial or a death sentence?

But ridiculous or not, Brenda Andrew was about to learn a hard lesson about legal mistakes, by way of a doctrine that is the bane of appellate lawyers’ existence: harmless error. Judges and prosecutors and defense attorneys make mistakes, the doctrine says, but not all mistakes are created equal; and only those mistakes that would have affected the verdict require a new trial. The majority of the Court of Criminal Appeals found that none of the errors would have made the jury vote differently.

The Court’s opinion was not unanimous, however. Judge Arlene Johnson believed that Andrew should receive a new sentencing. She articulated and condemned the “evil woman” theory at the same time:

“The first stage of this capital murder trial is rife with error. That error, at its most egregious, includes a pattern of introducing evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman. The jury was allowed to consider such evidence…in violation of the fundamental rule that a defendant must be convicted, if at all, of the crime charged and not of being a bad woman.”

While she found the proof of Andrew’s guilt too strong to disturb the guilty verdict, she refused to “stretch that rationale far enough to find this jury was unaffected by that evidence in deciding whether this defendant should live or die.” Another judge on the court agreed with Johnson and would have gone further, granting Andrew a new trial as well. But those two were not a majority. Brenda Andrew remained on death row.


The next appellate stop was the federal district court of western Oklahoma, a jurisdiction that carried a devastating legacy from the Oklahoma City bombing of 1995. The crime prompted an almost immediate response from the United States Congress, and various bills were debated only weeks after the bombing. Civil rights and civil liberties groups spoke eloquently against acting hastily. One speaker begged Congress not to practice the “politics of the last atrocity,” a phrase that had originated during The Troubles in Northern Ireland: “Destroying constitutional rights is not the way to build a memorial to the dead in Oklahoma City, nor is it the way to protect Americans from terrorism, nor is it the way to fight terrorism.” Others pointed out the country’s unfortunate history in the wake of traumatic events — the Smith Act and its subsequent prosecutions to lock up Communists at the beginning of the Cold War, the internment of Japanese Americans after the attack on Pearl Harbor — and urged caution in the face of a nearly universal demand for action. Such calls went unheeded, however, and almost exactly one year after the bombing the Anti-Terrorism and Effective Death Penalty Act was signed by President Clinton.

The Act, soon to be known as AEDPA, addressed international terrorism, weapons restrictions, criminal alien removal, and various other issues; but its greatest impact by far was on the federal writ of habeas corpus, often called the Great Writ because of its historical role in the protection of individual liberties against government overreach. AEDPA spurred an enduring rash of legal condemnation for its narrowing of the rights of the accused, and more specifically for its requirement that the federal courts defer to state court decisions, even when those courts made clear constitutional errors. It was with this backdrop that Brenda Andrew pursued her federal death penalty appeal, and one of her significant arguments was that the testimony of her sexual history had rendered the trial fundamentally unfair.

Of all the irrelevant evidence of Andrew’s promiscuity, perhaps the most extraneous was her affair with a man named Rick Nunley, a sexual relationship that had ended four years before the murder and was labeled “remote” even by the Oklahoma Court of Criminal Appeals. But the court dismissed the importance of the Nunley testimony out of hand:

“Evidence of their sexual affair was limited to one question during his testimony. Thus, even though the evidence of a sexual affair between Nunley and [Andrew] was remote, its significance was a minimal part of the relationship, and the mention of it was harmless in this case.”

There was only one problem with the court’s analysis — it was wrong. There had been an entire series of questions about their sexual relationship:

Prosecutor: When did you begin to have a more than friendly relationship with the Defendant Brenda Andrew?

A: In the late Fall of ’97, probably late October or early November of ’97.

Q: Was there something that (sic) particular that caused that relationship to escalate?

A: Brenda seemed to experience common marital problems that I also experienced and we shared those things over the years, that may have contributed to it.

[…]

Q: Now, at the time you began your affair with Brenda Andrew were you married, sir?

A: I was married, however, we had filed for divorce I think on October 1 of 1997.

Q: And was Brenda Andrew married?

A: Yes.

Q: Was she married to Rob Andrew?

A: Yes.

Q: Did Rob Andrew know about your relationship with Brenda Andrew at the time it was going on?

A: Not to my knowledge.

Nunley was then questioned about the more relevant insurance policy and the controversy over its ownership. But just in case the earlier point had been missed, the prosecutor returned to the relationship again a few minutes later:

Q. Had your affair ended with Brenda at the time you’re testifying about, around the 1st of October of 2001?

A. Yes. We had stopped seeing each other that way for a number of years.

Q. And while you were having an affair with Brenda Andrew was that a sexual relationship?

A. Yes.

And then there was this line of questioning in response to Nunley’s testimony that Brenda was “an intelligent person, one that loved her kids dearly, very hospitable hostess, good cook, nice person I thought:”

Q: You testified that Brenda Andrew was a very hospitable person. She was really hospitable to you, wasn’t she, Mr. Nunley?

A: Yes.

Q: And she was hospitable to Mr. James Higgins as well, wasn’t she?

A: I haven’t heard his testimony.

Q: She was hospitable to Mr. Pavatt as well, wasn’t she?

A: I haven’t heard his testimony either.

The Oklahoma court justified the admissibility of the Nunley affair by noting that Brenda shared with him “her hatred for Rob Andrew and her wish that he was dead.” This too was incorrect. Indeed, his testimony was quite the opposite:

Q: Were there any discussions with her about how she disliked Rob so much she wanted him dead or anything of that nature?

A: No.

Q: She certainly didn’t leave you with any impression….that she was going to hurt or harm or kill Rob in any way, did she sir?

A: No, never.

Had the Oklahoma state court actually read the transcript of the trial? If so, they had made some very significant errors. But what consequence did such a casual approach to a judicial opinion have in a federal court?

Much has been written about how the federal courts have been neutered by AEDPA, but even within its restrictive confines the statute makes an exception for what it terms an “unreasonable determination of the facts” by the state court. Since the Oklahoma court had made such clear mistakes in its opinion, how could it possibly have credibly decided whether Brenda Andrew had gotten a fair trial? The task fell to federal Judge Russell of the Western District of Oklahoma to sort out fact from fiction.

Russell’s opinion did no such sorting, however, and this was very bad news for Brenda Andrew. Quoting the state decision at great length, the judge did not correct a single factual error made by the Oklahoma Court of Criminal Appeals. Referring over and over again to the deference federal courts owe state decisions, and utilizing the double negative that is the hallmark of AEDPA, Russell did not find the Oklahoma court’s determination of the facts to be unreasonable. Put in plain English, Andrew had lost every claim.

But her chance of prevailing on appeal was about to take an even worse turn. Ordinarily there is one last stop before you reach the United States Supreme Court itself, and that is the federal court of appeals. In Andrew’s case she would turn to the Tenth Circuit, but Judge Russell had precluded this appeal by denying something called a Certificate of Appealability — he found that not a single issue in her case was “debatable among jurists of reason.” In other words, the judge had determined that her appeal was pointless.


Now what? Andrew had been waiting 11 years for her number to be called, and her options were rapidly shrinking. What was more, the jangled nerves of Oklahoma’s death row had been further shattered by a botched execution that gave pause to even the hardiest capital punishment proponent. After a medical team struggled to get a catheter into one of Clayton Lockett’s veins for almost an hour, eyewitnesses watched him writhing and bucking on the gurney for 30 minutes before the governor called off the execution by telephone from the Oklahoma City Thunder basketball game she had been attending. This did not save Lockett, however; he died of a heart attack while still in the execution chamber ten minutes later.

The ghastly combination of state ineptitude and the inverse of the late Justice Scalia’s description of lethal injection as an “enviable…quiet death” prompted a law suit by a death row inmate named Charles Warner. He had been scheduled for execution the same night as Lockett, but was spared by the governor’s phone call, and now he was the lead plaintiff in a legal effort to persuade the state to change its lethal injection protocol. Andrew and 19 other death row inmates had joined the suit, but the litigation did not stop executions in Oklahoma. Warner was put to death in early 2015. His demise, while not as outwardly grotesque as Lockett’s, was marred by the state’s later concession that it had used the wrong drug in violation of its own protocol. The state has not executed anyone since, and a grand jury is investigating the Lockett and Warner debacles. In the meantime, Oklahoma is exploring the firing squad and nitrogen gas as alternative avenues for capital punishment. No one believes that the results of the investigation will end the death penalty in the state.

A glimmer of hope has crept into the Andrew case, however. A year after Judge Russell found none of her claims worthy of debate, the Tenth Circuit disagreed and granted an appeal on eight different issues. The law is very clear that such a ruling does not herald a winning argument, but at least she now gets to make one. The lead claim charges “that the trial was rendered fundamentally unfair by the admission of irrelevant and salacious facts about Brenda Andrew’s sexual appetites and her past adulterous affairs.”

According to her lawyer, there might be a decision by the Circuit Court before the year is out. To a very real extent, however, her fate has already been determined. As death penalty lawyers like to say, she has been “othered;” that is, the prosecution has successfully vilified her character as well as her crime. Deciding whether Brenda Andrew is wretched or evil is not the issue. What we really have to face is our willingness to execute a woman for behavior that has nothing at all to do with criminality.

The Massachusetts Lab Scandals: Confronting the New Normal of Mass Error in Criminal Justice

U.S. Air Force
Senior Airman Ashlin Federick

The Massachusetts Lab Scandals: Confronting the New Normal of Mass Error in Criminal Justice


Last month, Massachusetts criminal defense lawyers filed suit seeking an extraordinary measure of relief: dismissal en masse of thousands of drug convictions, with prejudice — meaning that prosecutors would forever be barred from retrying the defendants. The circumstances giving rise to the request were, at first glance, equally extraordinary.

First, there was the revelation in 2013 that Massachusetts state crime lab chemist Sonja Farak had been arrested and charged with using the drugs she was supposed to be testing, and tampering with evidence. A year later Farak pled guilty to charges that stemmed from four incidents isolated to a six-month period. Meanwhile, as defendants sought relief from their convictions by arguing that Farak’s misconduct might have tainted their cases, prosecutors successfully opposed relief in many cases by arguing that the misdeeds were isolated and limited to the time period reflected in the criminal convictions.

But, at least if a June decision from Massachusetts Superior Court Judge Carey is to be believed, the state Attorney General’s office actually had evidence that Farak’s misconduct had gone on for much longer — at least a year and a half. Yet it had not conducted any investigation into whether a larger batch of cases might be affected, and did not disclose that favorable evidence to defendants whose cases might have been affected or to the judges before whom the office argued that the wrongdoing was isolated. When the concealed information finally became public, Massachusetts courts directed the Attorney General’s office to investigate further. The ensuing investigation revealed (in 2016, three years after Farak’s arrest) that the chemist’s misconduct began as early as 2005, when she began stealing methamphetamine and other narcotics from the lab for personal consumption and using them at work. Since 2009 she had engaged in evidence tampering to support her habit or conceal her theft, and by 2012 Farak was cooking crack at work and smoking it ten to twelve times per day.

And yet, according to the defense lawyers’ petition, as of today there has been no systematic notification of the estimate 18,000 defendants who were convicted on the basis of Farak’s analysis, to let them know that their convictions might be flawed. Meanwhile, Judge Carey’s decision called the Attorney General’s conduct in concealing evidence of the scope of Farak’s misconduct a “fraud on the court,” and took the unusual step of naming the names of two specific prosecutors responsible, in the court’s view, for “reprehensible . . . calculated misrepresentations” with “systemic” “ramifications” for defendants who were wrongfully convicted. Because of the combination of more than four years’ delay in providing information to affected defendants, plus the alleged concealment by prosecutors, defense lawyers are asking a Massachusetts court for what all agree is a “remedy of last resort”: punish the Commonwealth by dismissing every case and baring prosecutors from retrying the defendants, in order to deter these missteps in the future.

It is tempting in the Farak saga to focus on the egregious facts that have led to this most recent request. The Washington Post and other media outlets have appropriately taken interest in the seeming perfect storm of law enforcement and prosecutorial misconduct. But to concentrate on the case’s exceptional features misses the myriad ways in which what has transpired is par for the course in our criminal justice system. I want to suggest that the Farak case teaches three interrelated and lessons about the quite ordinary operation of our criminal justice system.

1. This will happen again. The Farak case is in fact the second instance of state-wide laboratory error that Massachusetts has dealt with in the last five years. The first, caused by state chemist Annie Dookhan’s admitted career in falsifying lab results (consistently in the Commonwealth’s favor), spawned its own body of court decisions sorting out, among other things, prosecutors’ obligations to notify defendants of potential errors in their cases, and establishing a protocol for handling the challenging mechanics of identifying, locating, providing information to, and vetting the claims of the thousands of affected defendants. Indeed, after years of litigation over how the system would handle the burden of sorting out which convictions were good and which were bad, the Commonwealth ultimately acceded to the dismissal of more than twenty thousand (yes, twenty thousand) drug convictions — a measure that, at least at the time, was unprecedented.

One would think that the Dookhan saga would have greased the wheels for engineering a solution to the Farak scandal. That it did not does not inspire confidence in how Massachusetts will fare in the next revelation of mass error — by which I mean information that systematically undermines the integrity of a substantial number of criminal adjudications. And there will be one. Last week’s petition references the possibility of evidence mishandling and Breathalyzer error scandals on the horizon. But the broader point is that the risk of mass error — from one detective with a practice of witness tampering, or one DNA technique that becomes discredited, or one forensic analyst who goes off the rails — is endemic.

2. Ordinary system pressures prevent us from handling these scandals well. Judge Carey’s opinion recounts, in part, an enormous derogation of the prosecutor’s oft-repeated obligation “to see that justice is done.” Without diminishing the egregiousness of the misconduct that Judge Carey’s opinion describes — long-term, concerted, knowing suppression of evidence from defendants and from the courts — it is important to push back against a “bad apple” narrative. Many prosecutors — including well-intentioned ones — are subject to temptation to be less than ambitious in uncovering and disclosing past errors; consider as just one example the Washington Post’s revelation in 2012 that federal prosecutors had known for years of flaws in bullet lead analysis testimony, but had not shared the information with defendants. The hortatory and ephemeral commandment to pursue justice is under terrific pressure when due diligence by a prosecutor would mean saddling herself and her colleagues the massive workload of relitigating or confessing error in thousands of convictions. The pressure is compounded by the fact that prosecutors’ ethical obligations concerning post-conviction evidence of innocence remain hazy, and that the institutional mechanisms by which such evidence should be communicated are ill-formed. All that is to say, there is every reason to think that some variation on the types of delays and failures of notification seen in the Farak case could happen in any number of jurisdictions — especially absent efforts to clarify and enforce legal and ethical obligations, and to develop procedures for carrying out those obligations.

3. Ad hoc approaches to mass error should give way to deliberate and institutionalized responses. Stakeholders in Massachusetts have made a tremendous effort in attempting to respond to these recent shocks to the criminal justice system. The state public defender organization has dedicated a specialized team of lawyers to the task, and prosecutors have made important efforts to attempt to unwind the tangles created by Farak and Dookhan. The judiciary, in particular, has been responsive, relatively nimble, and at some turns quite bold in exercising what it calls its “general superintendence powers” both to articulate the legal duties of prosecutors and rights of defendants, and to give concrete direction to stakeholders as to how to execute those duties. But the consequence of relying on the courts to incrementally articulate duties and fashion bespoke processes has likely been a relatively protracted and adversarial process in an instance where due speed and collaboration are called for.

There is likely no one-size-fits-all solution to the problem, but institutionalizing responsibility for the task of managing mass error is almost certainly preferable to ad hoc responses. Texas’s experience in the past decade with the Texas Forensic Science Commission provides one promising contrasting approach. A state commission charged with investigating forensic error and developing professionalism in the forensic science field, the TFSC has served as the organizing hub for several mass error responses in Texas. It has managed to do so in a highly collaborative fashion — bringing together prosecutors, investigators, defendants, and courts in the process — and to develop protocols that, with due tweaking, have served as templates for mass error incidents when they arise. Perhaps most critically, however, the very existence and work of the TFSC has communicated to system actors that responding to mass error is a critical function of the criminal justice system. Other institutional forms might communicate this equally well. The bottom line is that ensuring both fairness and accuracy, and maintaining public confidence in a criminal justice system that will inevitably reveal its vulnerabilities, requires that we take on board the task of confronting and untangling mass error when it occurs.

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Changing the Politics of Mass Incarceration

Changing the Politics of Mass Incarceration


It’s been almost 50 years since President Richard Nixon played the law-and-order card to help him win the presidency. Decades later Donald Trump has adopted the same playbook, telling his own version of the forgotten American who is at the mercy of a crime wave. It didn’t matter that facts didn’t support candidate Trump’s arguments. Politically speaking, it worked.

Nixon’s tough on crime political playbook, used by generations of American politicians after him, including Bill Clinton during the introduction and passage of the 1994 crime bill, has resulted in a mass incarceration crisis. On any given day, 2.3 million people are locked up, more than in any other nation. This mass incarceration crisis has devastated families and communities, particularly low income communities of color.

Yet in the same way that politics got us into this mess, politics have to get us out of it.

I spend a lot time thinking about how we end mass incarceration in the United States. On some days, it feels like we’re winning. Not a month goes by when we’re not getting some form of criminal justice reform legislation passed in the states or litigation won in the courthouses, whether on bail reform, drug or property law reform, or reforms to mandatory minimum laws.

Yet on many other days it feels like we’re losing, badly. Incarceration has only decreased 5 percent since 2009. We now spend roughly $80 billion per year on incarceration alone. And the poisonous rhetoric of law-and-order still spews out towards us on a daily basis. In many places, including in the White House today, when a politician needs a bump, he still relies on the law-and-order narrative borne out of the Nixon years.

But what if it didn’t have to be like this? What if criminal justice reform advocates on the right and left, the broader civil rights community, and more politicians jumped into electoral fights with the same vigor as the law-and-order crowd but not being scared to talk about compassion, rehabilitation and reinvestment as a replacement of law-and-order?

There are glimmers of hope that this strategy can work, and it is coming from surprising places. For decades it had been assumed that the only way to win an election for one of America’s approximately 3,000 district attorney seats is by being the toughest, least compassionate candidate in the race. Yet in several cities and counties this is beginning to change.

Philadelphia has most recently exemplified this phenomenon. The city has a long history of electing politicians who ran on a law-and-order platform. Former Mayor and Police Commissioner Frank Rizzo took pride in being a “tough cop.” Lynne Abraham, elected district attorney of Philadelphia from 1991 to 2010, was called America’s “Deadliest D.A.” by the New York Timesbecause of her zeal for pursuing the death penalty. For reformers living in that era, it would have been impossible to imagine a politician who could win on a criminal justice reform agenda, let alone a politician running to be the city’s top prosecutor.

Yet today, the leading candidate for Philadelphia district attorney is a civil rights lawyer who has never been a prosecutor, and who won the Democratic primary running on a platform centered on criminal justice reform and ending mass incarceration. With the overwhelming advantage for Democrats in the general election, it is fair to assume that Larry Krasner will be Philadelphia’s next district attorney.

The turn of events didn’t happen by accident. It represented a strategy deployed by local and national criminal justice and civil rights organizations (including, to name a few, the Philadelphia Coalition for a Just District Attorney, Color of Change, Safety and Justice PAC, and the Working Families Party). Support poured in to engage in aggressive voter education and turnout efforts, elevating the importance of alternatives to incarceration, bail reform, and rejection of policing practices that criminalized communities.

The ACLU alone organized our 11,438 members who are registered to vote in Philadelphia, knocking on more than 26,000 doors and hiring and training 51 canvassers who are formerly incarcerated to approach our members, in a non-partisan way, about why it was important to vote for a district attorney committed to ending mass incarceration. Our preliminary analysis reveals that our members, even ones who have note voted in recent elections, responded to our outreach by casting a ballot in this election. And the strategy succeeded by elevating the issue of ending mass incarceration to the forefront of the election.

Philadelphia is not alone in this example, as reform candidates have begun winning in cities and counties across the nation. But while prosecutors are the most powerful politicians in the criminal justice system, there are many additional actors who need to be held accountable.

Similar strategies and resources must now be deployed in elections up and down the ticket. In fact, state and local races are usually where it matters most in the fight to end mass incarceration. Ninety-percent of people who are incarcerated in the United States are under state and local jurisdiction. A state governor or assembly member matter a lot more when it comes to criminal justice reform than a congress member. It may be more interesting to talk about United States senators, but a state senator has much more power in deciding who and how many people are locked up in prisons and jails.

In the past few weeks alone, the ACLU has launched voter education efforts related to prosecutorial races in California, Oregon, Massachusetts and New York. In 2018, we will double down on this strategy and deploy it all over the nation, expanding it beyond prosecutors to include politicians of all types who decide the fate of the millions of people incarcerated in our nation today.

For the politics of mass incarceration to genuinely change, electoral strategies must use all of the tactics in the political handbook that candidates for office have perfected. This includes strategic get-out-the-vote efforts, phone banking, mailers to voters, and more. It must also include pressuring the party machines on both the left and right to elevate the importance of criminal justice reform. There has been a lot of talk over the years about how criminal justice reform is one of the few remaining bipartisan issues. Well now it’s time to test that theory in political races on the right and on the left.

We’ve seen it happen before in the United States; culture and political incentives change. Yet it never happens accidentally, but rather through the concerted efforts of organizers and activists and voters demanding a different way. The time has come to retake what it means to keep communities safe, and to change the incentives for politicians who shape our nation’s criminal justice system.

We can’t legislate or litigate our way out of mass incarceration. But we can and must change the culture and politics that have led to mass incarceration in the first place.

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